Obergefell – The Majority Opinion – The Due Process Argument – Part 2

We finished the last post as Justice Kennedy set up the next section of his argument in Obergefell. He explained that the Supreme Court had developed the legal tenets that it used over the years to discover previously unseen constitutional rights. When the Court applied those tenets to a case in 1972, the Court did not believe that same-sex marriage presented any federal question for it to consider. But, as Justice Kennedy went on to explain, “[s]till, there are other more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry, these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond [he means “marriage”]. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected.”

As we move into a discussion of these four principles, there are two questions to ask yourself as you read. The first is whether you agree that the Court has identified principles that are central to our definition of marriage. Second, do you agree with Justice Kennedy that the principles “compel the conclusion” that same-sex couples may exercise the right to marry? This is a summary of the four principles.

“A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy . . . decisions about marriage are the most intimate that an individual can make.” In light of Justice Kennedy’s introductory discussion of the history of marriage, changing from arranged relationships to relationships based romantic love, it is difficult to argue with this conclusion. It is an accurate reflection of our culture’s current view of marriage.

“A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Marriage is uniquely and specially designed to support the union of two people who want to live in a committed relationship.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education. The rights and responsibilities associated with marriage are an important foundation for the family that is created by the relationship.

Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Webster defines “keystone” as the wedge-shaped piece at the crown of an arch that locks the other pieces in place.” So, applied here, marriage is one of the institutions that locks our social order in place. Justice Kennedy also quotes Alexander de Tocqueville, who said that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress. . . . For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. . . .These aspects of marital status include: taxation [at special rates]; inheritance and property rights; rules of intestate succession [what happens when a spouse dies without a will]; . . . hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates . . .” and the list goes on.

He concludes this section by finding that, In exchange for people’s commitment to enter into marriage, “[t]he States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.”

So, if we put together the reasoning from the four points that Justice Kennedy has enumerated, we have this argument:

Two people who love each other have the Constitutional right to decide if they want to live in a committed relationship.

Marriage is uniquely and specially designed to support the union of two people who want to live in a committed relationship.

Marriage as an institution safeguards the other rights and responsibilities that flow from the committed relationship, like children and families and the long list in the quotation above. All of which are critical to our society,

Because marriage is critical to our society, society has pledged to give certain special rights and benefits to those who enter into the marriage relationship.

Justice Kennedy begins his conclusion to this section by stating “[t]here is no difference between same- and opposite- sex couples with respect to this principle [The principles are equally valid and will accomplish their purpose of ultimately strengthening society regardless of the gender of the parties is the marriage.] Yet, by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.” He then explains that “the limit of marriage to opposite-sex couples may long have seemed natural and just. but its inconsistency with the central meaning of the fundamental right to marry is now manifest.” These words underline what he has said before in the decision; marriage is a right that is endowed by the Constitution upon every citizen of the United States and the individual States may not limit the right only to same-sex couples. He recognizes that people acting on “decent and honorable religious or philosophical premises” have passed laws excluding same-sex couples from the same legal treatment that opposite-sex couples receive in marriage. But, because those laws conflict with the fundamental Constitutional right to marry, they cannot stand.

To borrow from Justice Kennedy’s “keystone” argument above, the application of these four principles to same-sex marriage is the keystone of the majority decision. All that has led to this analysis is setting the stage and all that follows is cleaning up the loose ends. If another individual challenges whether a state has unconstitutionally denied the him or her the right to marry, one would expect the Supreme Court to us this set of principles to analyze the claim.

In the next post, we will review Justice Kennedy’s Equal Protection argument supporting same-sex marriage, cover his concluding comments and observations, and finish the discussion of the majority opinion.

To read all the posts in this series and for other resources, including a copy of the decision in PDF format, please follow this link.